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Cervantes v. Department of Human Services

Court of Appeals of Oregon

January 16, 2019

Aaron CERVANTES, Petitioner-Appellant,
v.
DEPARTMENT OF HUMAN SERVICES, Child Welfare, Respondent-Respondent.

          Submitted December 7, 2018

          Marion County Circuit Court 17CV26961; Donald D. Abar, Judge.

         Peter Druckenmiller fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner seeks judicial review of a final agency order in other than a contested case. In that order, the Department of Human Services (DHS) found that there was reasonable cause to believe that petitioner, who was employed at DHS's Stabilization and Crisis Unit (SACU), was responsible for neglect and lack of supervision and protection with respect to two minors in the SACU. The circuit court upheld DHS's order on its motion for summary judgment, concluding that there were no genuine issues of material fact as to whether the order was supported by substantial evidence and that DHS correctly applied the applicable law. On appeal, petitioner argues that the circuit court's ruling was based on a misunderstanding of the summary judgment procedures in judicial review proceedings under ORS 183.484. Held: The circuit court erred by resolving the matter on summary judgment. Although the circuit court may have been correct in concluding that the summary judgment record was sufficient to establish that the challenged order was supported by substantial evidence, petitioner opposed summary judgment and did not concede that the record was adequately developed for the court to conduct substantial evidence review. Additionally, petitioner's evidentiary submissions demonstrated that there were disputes of fact going to the merits of DHS's determination. Under Bridgeview Vineyards, Inc. v. [295 Or.App.692] State Land Board, 258 Or.App. 351, 309 P.3d 1103 (2013), petitioner is entitled to develop the record further at an evidentiary hearing.

         [295 Or.App.693] LAGESEN, P. J.

         This proceeding arises under ORS 183.484, which provides for judicial review of final agency orders "other than contested cases" in an appropriate circuit court. ORS 183.484(1).[1] In the final order at issue, the Department of Human Services (DHS) found that there was reasonable cause to believe that petitioner, who was employed at DHS's Stabilization and Crisis Unit (SACU), was responsible for neglect and lack of supervision and protection with respect to two minors in the SACU. On DHS's motion for summary judgment, the circuit court upheld that order, concluding that there were no genuine issues of material fact as to whether the order was supported by substantial evidence and that DHS correctly applied the applicable law.

         Petitioner seeks judicial review, assigning error, among other things, to the circuit court's grant of summary judgment. He contends that the circuit court's ruling was based on a misunderstanding of the summary judgment procedures in judicial review proceedings under ORS 183.484 and that, under a correct understanding of the process, the circuit court's grant of summary judgment was in error. DHS, in response, concedes the error. We are not bound to accept that concession and must decide whether to accept it. State v. Bea, 318 Or. 220, 224, 864 P.2d 854 (1993) ("We need not accept [a] concession concerning a legal conclusion."). For the reasons that follow, we do.

         Like the order at issue in this case-which has substantial ramifications for petitioner's reputation and employment prospects-many agency orders issued outside of the contested case context often impose significant burdens on the liberty and property interests of Oregonians. Given those consequences, it would not be unreasonable for a person subject to such an order to look to Oregon statutes for the procedures governing judicial review of such orders and hope to come away with an understanding of the process and a confidence that the process was designed to ensure [295 Or.App.694] fair, efficient, and economical means of securing judicial scrutiny of agency action.

         That effort would be frustrating for most people. As it stands, the applicable procedure can't be found in the statutes or administrative rules in any clear way. Instead, they exist in the volumes of the Oregon Reports, the product of judicial decisions that attempt either (1) to define the role of the circuit court on judicial review under ORS 183.484 of an order other than a contested case or (2) to assess how the Oregon Rules of Civil Procedure come into play when a circuit court is reviewing the decision of an executive branch agency, rather than acting as a decision-maker itself in the first instance. To aid the bench, bar, and public, we'll attempt to lay out that procedure as clearly and succinctly as we can. For now, here's what the cases say.[2]

         First, in a proceeding under ORS 183.484 for review of an order other than contested case, review is not limited to the record on which the agency based its decision. Instead, "ORS 183.484 affords the parties the opportunity to develop a record like the one that parties are entitled to develop at an earlier stage in a contested case proceeding." Norden v. Water Resources Dept, 329 Or. 641, 649, 996 P.2d 958 (2000). Once that record has been developed, the circuit court then [295 Or.App.695] reviews to determine "whether the evidence would permit a reasonable person to make the determination that the agency made in a particular case."[3] Id. Thus, even though the record created before the circuit court may bear little resemblance to that on which the agency relied to make a challenged decision, under Norden, the circuit court must treat the agency as having had the later-created record before it at the time of its decision.

         Second, even though the parties are entitled to make a record in the circuit court, summary judgment under ORCP 47 is not necessarily off the table in a case involving a substantial evidence challenge. For example, a court may resolve the case on summary judgment where the parties, in effect, agree or concede that the court may conduct its substantial evidence review on the evidentiary record developed on summary judgment. Coquille School District 8 v. Castillo,212 Or.App. 596, 602, 159 P.3d 338 (2007); see Bridgeview Vineyards, Inc. v. State Land Board,258 Or.App. 351, 367, 309 P.3d 1103 (2013) ("Coquille School District illustrates that parties ...


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